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First Rent Appeal No. 251 of 1980, decided on 5th September, 1982.

‑‑‑ S. 15(2)‑Wilful default‑Default should carry an element of inten tion not to pay rent‑Tendering of rent by tenant through money order proved‑Rs.900, also lying with landlord as rent deposit‑Tenant trying bard to tender rent and alternatively depositing rent in Court No wilful default, held, proved in circumstances‑Rent Controller without taking into consideration efforts of tenant of depositing rent and rent depositing of Rs. 900, observing in his judgment that tenant should have deposited rent for month of November, 1975, by 15th December, 1975, instead of 26th January, 1976 ‑ Findings of Rent Controller, being erroneous set aside, in circumstances.

Appellant in person.

M. Muzaffarul Haq for Respondent.

Date of hearing: 8th August, 1982.

This is an appeal directed against the judgment passed by III Rent Controller, Karachi on 23rd January, 1980, directing the appellant to vacate the shop premises bearing No. 7, Zebra Chambers, Zaibunissa Street, Saddar, Karachi.

2. The facts leading to the instant appeal are that the appellant is the tenant of respondent in respect of shop Premises No. 7, Zebra Chambers, Zaibunissa Street, Saddar Karachi on a monthly rent of Rs. 150. Respondent filed a Rent Application No. 3651 of 1976 against the appellant on the alleged grounds of non‑payment of rent, for making illegal and unauthorized construction, for converting the shop into a factory for infringing terms of tenancy agreement and for subletting the premises..

3. The appellant/tenant in the written objections before the trial Court has denied the allegations of the respondent and stated that the respondent had refused to receive the rent from him inasmuch as the appellant sent the rent for the months June, July, August and September, 1975, by three money orders which were refused by the respondent and therefore, the appellant had no alternate but to deposit rent with Nazir of the Court. The appellant therefore, pleaded that there was no default on his part.

4. The Rent Controller on the pleadings of the parties settled the following issues:

(1) Whether the opponent is a wilful defaulter If so, since when

(2) Whether the opponent has carried out unauthorized construction If so, its effect

(3) Whether the opponent has converted the premises in question from shop into factory If so, its effect

(4) Whether the opponent has violated the terms of tenancy agreement If so, its effect

(5) Whether the opponent has sublet the premises in question

(6) What should the order be

5. Issue No. 1 was found in the affirmative while all the remaining issues were found in the negative by the Rent Controller. Accordingly vide Issue No. 6 the Controller ordered eviction of the appellant. Against the aforesaid order dated 23rd January, 1980, an appeal under section 15 of the Urban Rent Restriction Ordinance, 1959, was filed but the District Judge opined that the appeal would lie before the High Court in view of the provisions of Sind Rented Premises Ordinance, 1979. Hence the instant appeal was filed in this Court.

6. The appeal was heard by this Court and the appellant argued the matter in person and submitted written arguments while Mr. Muhammad Muzaffarul Haq, Advocate has made submissions on behalf of the respondent in respect of Issue No. 1 relating to default. This issue is appealed against in this case while the other issues are in favour of the appellant.

7. One Abdul Ghaffar the brother and attorney of the appellant was examined at Exh. 6 by the Rent Controller. He has deposed that respondent had refused to receive the rent and therefore, be had sent the same through money orders but the same was also refused. He has produced three money order coupons Exhs. 6‑B, 6‑C and 6‑D. Respondent's attorney has produced Nazir's reports Exhs. 5‑C and 5‑D/1‑3. Respondent's contention was that the appellant had even committed default in the deposit of rent in the misc. rent case also. The learned Rent Controller has considered‑the aspect of sending the money orders and the production of three money order coupons and came to the conclusion that the appellant has failed to prove that he offered or tendered the rent in question by money orders. The Rent Controller doubted the tender of rents through money orders, as he believed the postman or clerk of the Post Office was necessary to prove that the money orders were in fact issued. He also believed that the endorsement "refused" should have existed on coupons.

8. In the written arguments a contention is raised by the appellant that be had made an application on 15‑7‑1979 for summoning the official concerned of the Post Office. A certified copy of the said application and supporting affidavit are annexed with memo. of appeal as Annexure C. It is further submitted that the lower Court did not allow the said application, It is also rebutted in the written arguments that the correct address of the landlord was given and there is no ground to state that the address was wrong. The address is given in the upper part of the money order form, which is not included in the coupons. It is erroneous on the part of the Controller to believe that proper address was not mentioned in the money orders.

9. This Court has examined the coupons produced by the, appellant in the lower Court. It is proved that the rent was tendered through money orders as the coupons of the Postal Department are produced. Unless the allegations are made that these coupons are forged and not issued by the Postal authorities till then it must be presumed that the coupons were issued by the Postal Department and the logical conclusion is that the rent was tendered through the money orders. When the money orders returned unpaid the same amounts were deposited in the Court in miscellaneous rent application. The basis of the findings on the failure by the tenant to examine the clerk of Postal Department in my opinion is erroneous. There is an application by the appellant/tenant in the lower Court wherein he has prayed to summon such a clerk but it was disallowed.

10. It is to be observed that in the deposition of the attorney of respon dent following admissions are made:‑

"It is a fact that we had taken Rs. 7,000, more as deposit from the opponent beside Rs. 5,000, mentioned in the rent agreement. Besides this we had taken Rs. 900, as rent deposit from the opponent."

Rs. 900, were taken by the landlord/respondent for the rent deposit and this amount is not adjusted towards the rent if at all there was default. When the amount was taken earlier as rent, there would be hardly any default on the part of the appellant although appellant had made every effort to pay the rent through money orders and then alternatively depositing the rent, in miscellaneous application in the Court. Default should carry an element of intention not to pay rent. Here there is no such intention. To the contrary there is every effort to pay the rent when already a sum of Rs. 900, was lying deposited as "Rent deposit" with the respondent.

11. The learned Rent Controller in his judgment, made a reference, that the appellant deposited the rent for the month of November, 1975, on 26‑1‑976, which according to law he should have deposited before 15th of December, 19 75. This, and other so‑called defaults were agitated in Appeal No. 237/78, and were decided in favour of the appellants. Thus the Rent Controller should not have considered this aspect at all, as he is barred by the doctrine of res judicata.

12. The finding of the learned Rent Controller in respect of Issue No. 1 is erroneous and there is no wilful default committed by the tenant/appellant. The Controller has not considered the point that there were already Rs. 900, lying in rent deposit with the respondent.

In the result I set aside the judgment of the Rent Controller and allow the appeal with no order as to costs.

M. Y. M. Petition accepted.

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